Contreras-Bocanegra v. Holder
629 F.3d 1170
10th Cir.2010Background
- Contreras-Bocanegra, a Mexican national, became a lawful permanent resident in 1989.
- In 1991 he was convicted of attempted possession of a controlled substance, rendering him removable upon reentry in 2004.
- Removal proceedings commenced; an IJ ordered removal in 2007 and cancellation of removal was denied; BIA denied review in 2009.
- Contreras was removed on April 9, 2009, and filed a timely motion to reopen in June 2009 alleging ineffective assistance of counsel.
- BIA dismissed the motion for lack of jurisdiction under 8 C.F.R. § 1003.2(d), the post-departure bar, asserting no jurisdiction to reopen after departure.
- Petition for review followed challenging the post-departure bar as conflicting with IIRIRA, which allows one motion to reopen within 90 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the post-departure bar precludes a motion to reopen filed within 90 days | Contreras contends IIRIRA's one-motion/90-day window overrides the bar. | Contreras[] argues the bar is valid under agency rulemaking and Chevron. | Post-departure bar valid; BIA lacks jurisdiction to hear motion. |
Key Cases Cited
- Rosillo-Puga v. Holder, 580 F.3d 1147 (10th Cir. 2009) (upholds the post-departure bar as a valid delegation)
- Mendiola v. Holder, 585 F.3d 1303 (10th Cir. 2009) (confirms post-departure bar divests BIA of jurisdiction)
- Union Pacific Railroad v. Brotherhood of Locomotive Engineers, 130 S. Ct. 584 (U.S. 2009) (agency jurisdiction constrained by Congress; not limited by rulemaking)
- In re Smith, 10 F.3d 723 (10th Cir. 1993) (binding precedent on jurisdictional limits)
- INS v. Aguirre-Aguirre, 526 U.S. 415 (U.S. 1999) (Chevron framework applied to agency rule validity)